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Editorial: Good luck to Maurice Tomlinson

Published:Friday | December 11, 2015 | 12:00 AM

Hopefully, Maurice Tomlinson has greater insulation than was available to Javed Jaghai, so as to allow him to sustain, to the final tier of the court system, if necessary, his constitutional challenge to Jamaica's anti-sodomy, or buggery, laws.

For we, like Mr Tomlinson and many other rational Jamaicans, know instinctively that not only are those laws offensive to the universal principles of individual rights and freedoms, but they are probably contrary to guarantees afforded by Jamaica's Constitution.

Under Jamaica's anachronistic sections of the Offences Against the Person Act, anal penetration, even between consulting adults, including husband and wife, and conducted in utmost privacy, is illegal, for which people can be sent to jail. But this criminalisation of anal sex is a cudgel used primarily against males in a still largely homophobic society, despite the pockets of increasing tolerance for male homosexuality.

These old attitudes, underpinned by the law, have consequences, some, while perhaps unintended, painfully severe. Not least of these being the assault on the dignity and emotional well-being of that significant proportion of the Jamaican society, male and female, that is homosexual. They are denied the right to openly display affection, or, in privacy, engage in acts of physical intimacy with persons they love or with whom they wish to have sexual relations.

If the State doesn't get you, the vigilantes might.

In this atmosphere of intimidation, it is not unexpected that homosexual males, but for those pushed to psychological disturbance or exhibitionism, are driven underground, fearful of accessing services such as health care, lest they have to reveal their status. Little wonder that Jamaica has among the hemisphere's highest rates of HIV-AIDS among men who have sex with men. So, there is a public-health problem that is exacerbated by this silly old law.

Further, as we often argue, this newspaper sees no logic to the Jamaican State setting itself up as a kind of voyeuristic commissar of sexual practices. It certainly has no right in people's bedrooms to determine the acts in which they engage, whatever the gender or status of the participants.

 

Trampling on rights

 

Indeed, the Jamaican Constitution, in its Charter of Fundamental Rights and Freedoms, guarantees the right of association and the right of privacy, including the privacy of one's home and family life. These, on the face of it, are trampled on by the continued existence of the buggery law, although we expect it to be argued that such impingement may have been saved by Section 13 (12) of the Constitution relating to categories of law that were in force before the new Charter of Rights.

The fundamental argument in favour of the buggery law is framed in a fundamentalist Christian and biblical construct of morality, to which probably the majority of Jamaicans subscribe. However, the Constitution prescribes freedom of religion, which we believe means not only the Judaeo-Christian variety. Importantly, also implied in this construct, we believe, is freedom from religion. Religious people have no greater right than others to be final arbiters of moral principles.

We know there is a view that giving way on the buggery law will cascade to demands for same-sex marriage, even though the Constitution expressly states that marriage is between one man and one woman. It would be a far way to go to overturn that.